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If any person sues the local authority for a repayment, it will be on the basis that they were charged under s22 NAA for residential or nursing accommodation, when in fact they should not have been, because they were in fact entitled to be provided with the accommodation pursuant to s117 MHA which has no charging provision attached to it. The LA will have no defence to that claim if the House of Lords upholds the Court of Appeal’s interpretation of s117 and nothing is done by Parliament to bail out the authorities affected, by way of retrospective legislation. The LAs affected might have to consider joining their associated HAs into the proceedings for a contribution, as having been jointly liable in law for the provision of the aftercare that the person should have had for free. Thus if authorities are currently negotiating as to the proper splitting of the costs of s117 provision for the future, (ie either 50/50 or any other formula), whatever is agreed could also determine the LA’s rights as against the HA for a contribution in past cases. What is very clear is that the client or the client’s estate will not have a direct claim for the unlawful charges as against the HA because the HA will not have charged the client at all. A client might have a public law claim against the HA for not having discharged its joint statutory duty to make provision for the aftercare, but public law claims have a time limit, and a judge might not see that there was any good reason for excusing the delay on the part of the challenger, given that they would have a non-time barred common law action in the private law courts against the LA for repayment of the unlawful charge. Thus the only thing an LA might be able to do is to use the proceedings to claim against the HA for restitution of money which should have been jointly spent. The aim in our view should therefore be to include the question of principle of repayment at the same time as discussions about the future sharing of funding. The compromise principle to avoid litigation between Health and Social Services should be that any repayments that do have to be made ultimately, should be made in proportion to whatever is agreed about splitting funding now. It might be prudent to be open about the problem that whilst a certain proportion of potential claims for repayments may not ever actually be made, there may be some cases where the local authority is the Receiver for the individual’s property and monetary affairs, and in those cases it is our view that repayment will have to be offered, and not merely made only in response to a demand, if the Lords finally uphold the Court of Appeal’s approach. It would be invidious to be owing the client money whilst bearing a statutory fiduciary duty towards that same client. |
